NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50176
Plaintiff-Appellee, D.C. No. 2:20-cr-00293-AB-1
v. MEMORANDUM* PAUL GARY WALLACE, AKA Bill, AKA Doc, AKA Lil Doc, AKA Lil Doc Thone, AKA Still Bill, AKA Uncle Bill,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted April 12, 2024 Pasadena, California
Before: SILER,** GOULD, and BEA, Circuit Judges.
Paul Gary Wallace appeals his conviction and sentence for RICO conspiracy
and using or carrying a firearm in relation to a crime of violence. He argues that the
district court erred by failing to suppress evidence and admitting unqualified expert
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. testimony and his admissions to prior murders. Both his conviction and sentence,
he argues, must be vacated because the evidence was insufficient to support the
verdict, and his sentence must be vacated because the district court improperly
imposed a mandatory consecutive sentence and three conditions of supervised
release. Finding no error, we affirm.
1. Wallace attacks his conviction on three grounds. First, he argues that the AK-
47-pattern rifle police saw in his van could have been legal under California law and
therefore could not have established probable cause for a search warrant. But this
argument fails because he neglected to raise it before the district court, so it is
therefore forfeited. Also, Wallace fails to wrestle with the fact that “assault
weapons” are presumptively illegal in California except as specified under certain
statutory provisions, Cal. Penal Code § 30605(a), and therefore officers had probable
cause to suspect that the rifle was illegal pending further investigation. See, e.g.,
United States v. Vandergroen, 964 F.3d 876, 881 (9th Cir. 2020). Although there
were innocent explanations for the rifle, “probable cause does not require officers to
rule out a suspect’s innocent explanation for suspicious facts.” District of Columbia
v. Wesby, 583 U.S. 48, 61 (2018).
Second, Wallace argues that the district court erred regarding expert
testimony; specifically, that allowing LAPD Officer Andres Fernandez to offer
expert testimony on the structure and operations of Wallace’s gang, the East Coast
2 22-50176 Crips (“ECC”), violated Wallace’s rights under the Confrontation Clause; that
allowing Daniel Rubin, an LAPD ballistics expert, to testify violated Daubert and
Rule 702; and that the district court’s failure to make express reliability findings
requires reversal. None of these arguments has merit.
Wallace argues that Officer Fernandez’s testimony was not based on his own
investigations and analysis but was simply regurgitated information gleaned from
prior gang member interviews. But while Fernandez’s testimony relies on
information obtained from other gang members, we have repeatedly affirmed the use
of similar expert testimony to describe the structure, operation, and codes of conduct
of criminal organizations. See United States v. Holguin, 51 F.4th 841, 856 (9th Cir.
2022) (collecting cases). Like our prior cases, Wallace fails to argue “that a gang
investigator would not rely on the kind of information” Fernandez described. Id.
Fernandez’s testimony is similar, albeit not identical to that in United States v. Vera,
770 F.3d 1232, 1237 (9th Cir. 2014), and Holguin, both of which permitted the
challenged expert testimony. See Holguin, 51 F.4th. at 857 (“The gatekeeping
inquiry is always case-specific.”). The testimony was properly admitted.
Next, Officer Rubin testified to his ballistics toolmark analysis which matched
the casings fired at a murder scene to the rifle discovered in the rental van. Wallace
argues that this methodology has never been subjected to peer review and is therefore
inherently unreliable and inadmissible under Daubert. However, as the prosecution
3 22-50176 observes, “no federal court has categorically rejected toolmark analysis,” and our
precedent “squarely foreclose[s] that argument.” See United States v. Johnson, 875
F.3d 1265, 1281 (9th Cir. 2017). In the end, Wallace cannot show that admitting
any ballistics toolmark testimony was an abuse of discretion. His criticisms rely
entirely on reports that predate our approval of ballistics toolmark analysis in
Johnson.
Likewise, Wallace objects that Officer Rubin failed to characterize his
findings as within a “reasonable degree of ballistics certainty,” which the court failed
to correct sua sponte. But this is an overly technical reading of our precedent in
Johnson. 875 F.3d at 1280. That phrase was used simply because it was the one the
expert used; our opinion did not mandate incantation of the phrase by every expert
henceforth. Here, the expert chose simply to forgo suggesting any level of certainty.
To the degree that Rubin stated categorically that the bullet casings came from the
same gun, Wallace’s failure to object at trial dooms his objection. The district
court’s Daubert gatekeeping role does not oblige it to “step in,” as Wallace puts it,
when a witness makes an improper statement without objection. There was no plain
error.
The parties agree that the district court erred in failing to either hold a Daubert
hearing on Rubin’s testimony or make an explicit reliability finding. Holguin, 51
F.4th at 853–55. Nevertheless, this was harmless error because the “record supports
4 22-50176 the reliability of [the] expert testimony.” Id. at 855. Rubin’s conclusions were
supported by other testimony, including Wallace’s own repeated admissions that the
rifle seized from the rental van was used in a murder, and Wallace did not avail
himself of the opportunity to cross-examine Rubin.
Third, Wallace argues that evidence of his admissions of prior murders was
unduly prejudicial under Rule 403. He essentially contends that, because his
confessions would be insufficient standing alone to prove first degree murder of
anyone beyond a reasonable doubt, they are irrelevant. But that is not how relevance
works. If there is insufficient evidence—including the confessions—that Wallace
murdered Brown, then that would be a challenge to the sufficiency of the evidence,
not a Rule 403 challenge. Confessions to murder are highly relevant to a charge of
murder, even if they are not dispositive. And although they are assuredly prejudicial,
even “highly prejudicial” evidence is “not necessarily unfairly prejudicial.” United
States v. Thornhill, 940 F.3d 1114, 1123 (9th Cir. 2019) (internal quotation marks
omitted). Reviewing for abuse of discretion, we find no error.
2. Wallace next claims that the jury never properly found that he had committed
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50176
Plaintiff-Appellee, D.C. No. 2:20-cr-00293-AB-1
v. MEMORANDUM* PAUL GARY WALLACE, AKA Bill, AKA Doc, AKA Lil Doc, AKA Lil Doc Thone, AKA Still Bill, AKA Uncle Bill,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted April 12, 2024 Pasadena, California
Before: SILER,** GOULD, and BEA, Circuit Judges.
Paul Gary Wallace appeals his conviction and sentence for RICO conspiracy
and using or carrying a firearm in relation to a crime of violence. He argues that the
district court erred by failing to suppress evidence and admitting unqualified expert
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. testimony and his admissions to prior murders. Both his conviction and sentence,
he argues, must be vacated because the evidence was insufficient to support the
verdict, and his sentence must be vacated because the district court improperly
imposed a mandatory consecutive sentence and three conditions of supervised
release. Finding no error, we affirm.
1. Wallace attacks his conviction on three grounds. First, he argues that the AK-
47-pattern rifle police saw in his van could have been legal under California law and
therefore could not have established probable cause for a search warrant. But this
argument fails because he neglected to raise it before the district court, so it is
therefore forfeited. Also, Wallace fails to wrestle with the fact that “assault
weapons” are presumptively illegal in California except as specified under certain
statutory provisions, Cal. Penal Code § 30605(a), and therefore officers had probable
cause to suspect that the rifle was illegal pending further investigation. See, e.g.,
United States v. Vandergroen, 964 F.3d 876, 881 (9th Cir. 2020). Although there
were innocent explanations for the rifle, “probable cause does not require officers to
rule out a suspect’s innocent explanation for suspicious facts.” District of Columbia
v. Wesby, 583 U.S. 48, 61 (2018).
Second, Wallace argues that the district court erred regarding expert
testimony; specifically, that allowing LAPD Officer Andres Fernandez to offer
expert testimony on the structure and operations of Wallace’s gang, the East Coast
2 22-50176 Crips (“ECC”), violated Wallace’s rights under the Confrontation Clause; that
allowing Daniel Rubin, an LAPD ballistics expert, to testify violated Daubert and
Rule 702; and that the district court’s failure to make express reliability findings
requires reversal. None of these arguments has merit.
Wallace argues that Officer Fernandez’s testimony was not based on his own
investigations and analysis but was simply regurgitated information gleaned from
prior gang member interviews. But while Fernandez’s testimony relies on
information obtained from other gang members, we have repeatedly affirmed the use
of similar expert testimony to describe the structure, operation, and codes of conduct
of criminal organizations. See United States v. Holguin, 51 F.4th 841, 856 (9th Cir.
2022) (collecting cases). Like our prior cases, Wallace fails to argue “that a gang
investigator would not rely on the kind of information” Fernandez described. Id.
Fernandez’s testimony is similar, albeit not identical to that in United States v. Vera,
770 F.3d 1232, 1237 (9th Cir. 2014), and Holguin, both of which permitted the
challenged expert testimony. See Holguin, 51 F.4th. at 857 (“The gatekeeping
inquiry is always case-specific.”). The testimony was properly admitted.
Next, Officer Rubin testified to his ballistics toolmark analysis which matched
the casings fired at a murder scene to the rifle discovered in the rental van. Wallace
argues that this methodology has never been subjected to peer review and is therefore
inherently unreliable and inadmissible under Daubert. However, as the prosecution
3 22-50176 observes, “no federal court has categorically rejected toolmark analysis,” and our
precedent “squarely foreclose[s] that argument.” See United States v. Johnson, 875
F.3d 1265, 1281 (9th Cir. 2017). In the end, Wallace cannot show that admitting
any ballistics toolmark testimony was an abuse of discretion. His criticisms rely
entirely on reports that predate our approval of ballistics toolmark analysis in
Johnson.
Likewise, Wallace objects that Officer Rubin failed to characterize his
findings as within a “reasonable degree of ballistics certainty,” which the court failed
to correct sua sponte. But this is an overly technical reading of our precedent in
Johnson. 875 F.3d at 1280. That phrase was used simply because it was the one the
expert used; our opinion did not mandate incantation of the phrase by every expert
henceforth. Here, the expert chose simply to forgo suggesting any level of certainty.
To the degree that Rubin stated categorically that the bullet casings came from the
same gun, Wallace’s failure to object at trial dooms his objection. The district
court’s Daubert gatekeeping role does not oblige it to “step in,” as Wallace puts it,
when a witness makes an improper statement without objection. There was no plain
error.
The parties agree that the district court erred in failing to either hold a Daubert
hearing on Rubin’s testimony or make an explicit reliability finding. Holguin, 51
F.4th at 853–55. Nevertheless, this was harmless error because the “record supports
4 22-50176 the reliability of [the] expert testimony.” Id. at 855. Rubin’s conclusions were
supported by other testimony, including Wallace’s own repeated admissions that the
rifle seized from the rental van was used in a murder, and Wallace did not avail
himself of the opportunity to cross-examine Rubin.
Third, Wallace argues that evidence of his admissions of prior murders was
unduly prejudicial under Rule 403. He essentially contends that, because his
confessions would be insufficient standing alone to prove first degree murder of
anyone beyond a reasonable doubt, they are irrelevant. But that is not how relevance
works. If there is insufficient evidence—including the confessions—that Wallace
murdered Brown, then that would be a challenge to the sufficiency of the evidence,
not a Rule 403 challenge. Confessions to murder are highly relevant to a charge of
murder, even if they are not dispositive. And although they are assuredly prejudicial,
even “highly prejudicial” evidence is “not necessarily unfairly prejudicial.” United
States v. Thornhill, 940 F.3d 1114, 1123 (9th Cir. 2019) (internal quotation marks
omitted). Reviewing for abuse of discretion, we find no error.
2. Wallace next claims that the jury never properly found that he had committed
murder sufficient to justify his 300-month sentence on the RICO charge. That
charge required the jury to find that “the violation is based on a racketeering activity
for which the maximum penalty includes life imprisonment.” 18 U.S.C. § 1963(a).
Under the government’s theory of the case, that activity would be conspiracy to
5 22-50176 commit murder or aiding and abetting murder. But Wallace does not address the
fact that California law makes no distinction between principals and aiders and
abettors. The text of the jury instructions asking the jury whether “Wallace . . .
murdered” could support any theory of liability. Indeed, the jury verdict form for
Wallace’s § 924 charge likewise asked the jury to find “Wallace” guilty or not guilty
“of using and carrying a firearm during and in relation to a crime of violence, first
degree murder of Reginald Brown in aid of racketeering.” Wallace never explains
why “Wallace . . . murdered” cannot include coconspirator or aiding and abetting
liability. And just as importantly, Wallace also ignores the fact that the jury also
found, beyond a reasonable doubt, that Wallace’s “pattern of racketeering activity”
included “acts involving murder.” Under the highly deferential standard of review
here, we find no error. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
3. Finally, Wallace challenges two aspects of his sentence: the imposition of a
ten-year mandatory consecutive sentence and a supervised release condition
prohibiting him from associating with gang members. Wallace was originally
charged with violating both 18 U.S.C. § 924(c) and (j). The latter provision carries
no mandatory minimum or requirement that the sentence be consecutive. But the
United States notified the court it intended to dismiss the § 924(j) charge, and the
jury was instructed in all respects under only § 924(c), which requires sentences be
at least ten years and run consecutive to other sentences. Therefore, the jury did not
6 22-50176 convict Wallace of violating § 924(j), the district court did not sentence Wallace
under § 924(j), and at most, any typographical error on the written judgment was
harmless and insufficient to show plain error.
Finally, Wallace contends that the court’s supervised release condition was
inappropriate in light of his pre-arrest work to bring reconciliation between rival
gangs. The parties agree that our review is for plain error. United States v.
Magdaleno, 43 F.4th 1215, 1221 (9th Cir. 2022). But Wallace ignores the district
court’s “wide latitude” to impose supervised release conditions. United States v.
Watson, 582 F.3d 974, 981 (9th Cir. 2009). It was not unreasonable for the district
court to restrict a former gang leader from associating with known gang members,
particularly given that Wallace had, while in custody, allegedly ordered another
inmate stabbed. Finally, because Wallace’s release from prison is decades away, he
can move to modify the condition once he is on supervised release if “the situation
in his community” calls for it. In short, the district court was entitled to conclude
that there was “good reason to forbid” Wallace’s association with ECC gang
members “so as to prevent his reversion into a former crime-inducing lifestyle”—
especially given that Wallace was not a “bit player” in the gang but rather had a
leadership role. Magdaleno, 43 F.4th at 1224 (cleaned up). We find no error.
AFFIRMED.
7 22-50176